New York State Court of Claims

New York State Court of Claims

GIRARD v. THE STATE OF NEW YORK, #2001-015-135, Claim No. 103064, Motion No. M-62940


Claimant, who was a passenger in State owned vehicle, moved for summary judgment on issue of liability. Motion denied since movant offered no evidence in admissible form to establish that the vehicle was operated in a negligent manner. Unauthenticated police report was not sufficient proof in that regard and claimant's attorney was without direct knowledge.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 4, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion pursuant to CPLR 3212 seeking an order determining the liability of the defendant as a matter of law and setting the matter down for an assessment of damages is denied. This claim arose out of a single motor vehicle accident which occurred on July 29, 2000 on State Road 145 in the Town of Rensselaerville, Albany County. The claimant's affidavit in support of the motion states, in its entirety, the following:
I was a student at SUNY Oneonta on July 29, 2000, when I was a passenger in a van owned by the defendant. At approximately 1:20 p.m., the van, which was rounding a curve, jumped the curb, turned over and rolled a few times. I was ejected from the van and when the van came to a stop, it was on top of me. This accident occurred on State Road 145 in the town of Rensselaerville, Albany County, New York, at its intersection with Traverse [sic] Hill. The van came to rest in the Brookside Cemetery.
Claimant's motion for summary judgment is supported by the affidavit of the claimant, an affirmation of her attorney who is without direct knowledge of the facts and a copy of an unauthenticated police report (MV-104A). The motion was opposed solely by an affirmation of the defendant's attorney who argues that claimant's motion is not properly supported and, therefore, is insufficient to permit a determination of the defendant's liability as a matter of law.

In order to grant summary judgment, a Court must find that there are no material triable issues of fact. "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Once the movant establishes his or her prima facie entitlement to summary judgment, the burden shifts to the opposing party to come forward with admissible proof establishing the existence of a material issue of fact requiring a trial (Leek v McGlone, 162 AD2d 504). Should the moving party fail to make a prima facie showing of its entitlement to judgment as a matter of law, the motion will be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320).

As noted above, this motion was supported by an unauthenticated police report. Because the report was not submitted in evidentiary form, it may not be considered on the motion (Szymanski v Robinson, 234 AD2d 992). Furthermore, it is well established that "[a] police accident report made by a police officer who was not an eyewitness containing hearsay statements regarding the ultimate issues of fact may not be admitted into evidence for the purpose of establishing the cause of the accident in question" (Figueroa v Luna, ____ AD2d ____, 2001 WL 225711; citing Kajoshaj v Greenspan, 88 AD2d 538, 539; Murray v Donlan, 77 AD2d 337). Claimant offered no affidavit from the investigating police officer nor was any attempt made to show that such officer was an expert in accident reconstruction. Such a showing would have allowed the Court to consider the officer's conclusions as to the cause of the accident based upon "postincident expert analysis of observable physical evidence" (Murray v Donlan, 77 AD2d 337, 347). Absent such a showing the report's conclusion that unsafe speed was a contributing factor to this accident, expressed solely as an answer to item #19 on the police report, may not be considered on the motion.

The motion was further supported by counsel's affirmation dated January 8, 2001. However, since claimant's attorney is without direct knowledge of the facts giving rise to the claim his affirmation is not competent evidence in support of the motion (see, Ciaccia v Moore, 159 AD2d 957; Zuckerman v City of New York, 49 NY2d 557). The only evidence submitted in admissible form on this motion was the affidavit of the claimant which is insufficient to establish a prima facie showing of negligence on the part of the vehicle's operator.

The claimant has failed to submit proof adequate to establish her entitlement to judgment as a matter of law. Accordingly, this motion must be denied.

April 4, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 8, 2001;
  2. Affirmation of Arthur Lichtman dated January 8, 2001;
  3. Affidavit of Maralyn Girard sworn to January 9, 2001 with exhibit;
  4. Affirmation of Frederick H. McGown, III, dated January 31, 2001 with exhibit;
  5. Reply affirmation of Arthur Lichtman dated February 2, 2001 with exhibit.